Delhi District Court
State vs Talib @ Dev on 5 February, 2011
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IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS
(NORTH) DELHI
SC NO. 35/10
STATE
versus
Talib @ Dev
S/o Yusuf @ Pappu
R/o Vill. Folda Pati,
PS Chajlet, Distt. Muradabad
Uttar Pardesh
FIR No. : 216/08
U/S : 363/366/ 376 IPC
Police Station : Sarai Rohilla
DATE OF COMMITTAL: 11.12.08
DATE OF TRANSFER IN THIS COURT: 23.09.10
JUDGMENT RESERVED ON: 19.1.2011
DATE OF JUDGMENT: 2.2.2011
JUDGMENT
1. Accused Talib @ Dev s/o Yusuf @ Pappu has been prosecuted for the offences punishable u/s 363/366/376 IPC on the allegations that on 25.8.08 after 3 p.m at A block, Shastri Nagar market, Sarai Rohilla, he kidnapped the prosecutrix Megha Tyagi with the intention that she may be compelled to marry him against her will and with a view to force her to have illicit intercourse with him and accused took her to his native village and also thereby raped her. The accused was apprehended on 6.9.08 from Old Delhi Railway station S.C.No. 35/10 Page 1 of 14 pages 2 alongwith the prosecutrix. The statement of prosecutrix was recorded at the police station u/s 161 CrPC and also before the Magistrate u/s 164 CrPC. Accused was apprehended and after completion of investigation, he was chargesheeted.
2. The case was committed for trial to the court of session on 11.12.2008 by Ld Metropolitan Magistrate.
3. On 2.1.09, formal charge was framed against the accused for the offences punishable u/s 363/366/376 IPC to which he pleaded not guilty and claimed trial.
4. The prosecution examined 13 witnesses in all to bring home the guilt of the accused. The substance of the evidence adduced by prosecution is as follows:
5. PW1 Ms Shashi Sharma, teacher in Sarvodya Kanya Vidyalya, Shastri Nagar, brought the school record of prosecutrix Megha Tyagi and proved her date of birth as recorded therein 29.4.92. PW1 has not been crossexamined.
6. PW2 Mukesh Tyagi is father of prosecutrix Megha. He deposed about missing report lodged by him on 26.8.08 about his daughter Megha Tyagi and thereafter formal FIR on 27.8.2008 vide EXP2/A. He also handed over School progress sheet vide EXPW2/B of Megha Tyagi to the IO. On 6.9.08, he received phone call from unknown person and then alongwith police officials went to old Delhi railway station and found her daughter Megha and accused present there. The accused was apprehended and both were sent for medical examination. The statement of Megha, was recorded. PW2 has been cross examined on behalf of accused.
S.C.No. 35/10 Page 2 of 14 pages 3
7. PW3 Rohit Tyagi is the brother of prosecutrix Megha. He stated that his sister went missing on 25.8.08 and all efforts to trace her proved futile. Missing report was lodged in the PS and thereafter on 27.8.08 another statement of his father was recorded and FIR was registered. PW3 also stated that his sister Megha complained about behaviour of accused Talib as he used to induce her for marriage and he had even scolded Talib not to move around his sister. PW3 has not been cross examined despite opportunity afforded.
8. PW4 Dr. Anubha Parekh, medically examined accused Talib @ Dev and also the prosecutrix Megha on 6.9.08 and proved their medical reports EXPW4/A&B respectively.
9. PW5 Dr Akash Jhanji examined accused Talib and gave his opinion to the effect that there was nothing to suggest that he was not capable of performing sexual intercourse. The opinion appeared on the back portion of MLC EXPW4/A.
10. PW6 HC Rambir recorded the FIR of the present case vide EXPW6/A being the duty officer and also proved his endorsement on rukka EXPW6/B.
11. PW7 Megha, the prosecutrix stated that accused was working as barber in a shop in front of her house. She had gone there for a hair cut and accused talked to her sweetly. She further stated that on 24th September she had gone to market of Shastri Nagar where accused met her and enticed her to accompany him. Accused took her to Malka Ganj, where he started working prior to the incident and from there took her to the house of his friend. Thereafter, accused took S.C.No. 35/10 Page 3 of 14 pages 4 her out of Delhi and raped her without her consent. She was kept by the accused for 1015 days. She was threatened by the accused not to raise alarm otherwise she would be killed. She further stated that accused wanted to take her to Mumbai and for this purpose brought her to old Delhi railway station and when accused went to buy tickets for Mumbai, she asked a stranger standing there to allow her to call her father from his mobile phone. The stranger then called on the mobile phone of her father and she informed her father about her whereabouts. Her father reached there alongwith police and accused was arrested vide memo EXPW2/C. They both were medically examined. Prosecutrix further stated that her statement u/s 164 CrPC was recorded vide EXPW7/A before the Magistrate. During examination by Ld APP she admitted that accused developed intimacy with her and used to talk her on phone. He used to tell that he belonged to a good family having good reputation in his village. She was induced due to sweet talks of accused and accompanied him on 25.8.08 and accused had taken her to Muradabad and there he raped her without her consent. She further admitted that accused took her to his village Folda Patti and pretended to marry her by putting Sindur on her head. She was kept as wife and raped and during this period accused took her to the house of his relative and when he came to know that police had reached there, he took her to the forest where also he raped her without her consent. The accused had taken her signatures on blank papers in front of an advocate. During S.C.No. 35/10 Page 4 of 14 pages 5 cross - examination, on behalf of accused, she denied that she was apprehended by the police at Muradabad or that she had voluntarily gone with the accused on account of having affair with him for about 45 years prior to the incident. She deposed that she was taken to Muradabad by train and there were 2025 passengers in the coach. Accused had been threatening her to kill her if she raised alarm. She got herself photographed with the accused at Muradabad at the instance of advocate vide EXPW7/DA. She returned to Delhi alongwith accused and they got down at old Delhi railway station. She did not raise alarm since accused threatened her to kill her father. Her father reached old Delhi railway station within 15/20 minutes of receiving her call. She herself wrote her statement at P.S. She denied the suggestion that accused has not done any wrong with her or that she had voluntarily gone with accused to marry him. She further denied the suggestion that she was living with accused as wife after marrying him. She denied to be deposing falsely at the instance of her family members or being tutored by them. She stated that when accused firstly took her alongwith him, he was having knife with him and took her away after showing knife to her.
12. PW8 lady constable Seema, joined the investigation of the present case and got the prosecutrix medically examined and took over sealed parcels from the hospital of prosecutrix and of the accused which were seized by the IO vide EXPW8/A. She has been cross examined.
13. PW9 Sh S.K. Gautam, Ld ASJ Tis Hazari, recorded the S.C.No. 35/10 Page 5 of 14 pages 6 statement of prosecutrix u/s 164 CrPC while working as ACMM vide EXPW7/A.
14. PW10 constable Vedpal took the sealed parcels of this case and deposited the same to CFSL Kolkatta.
15. PW11 HC Ramavtar (MHCM) at P.S Sarai Rohilla handled the case property/exhibits/sealed parcels and proved the relevant record vide EXPW 11/A&B and stated that case property remained intact in his custody.
16. PW12 SI Ramnath conducted investigation of the present case and proved rukka EXPW12/D and has given the details of investigation and documents prepared by him. The accused was apprehended from old Delhi railway station and relevant record of arrest, medical examination and recording of statements etc has been proved. During cross examination, IO denied that accused and prosecutrix were lifted from Muradabad or that all the proceedings were conducted by him while sitting at PS. He further denied the suggestion that he pressurised the prosecutrix to give statement against the accused or that signatures of accused were taken on blank paper and falsely implicated.
17. PW13 constable Gajender, also joined the investigation of the present case alongwith IO and has corroborated the investigation and the documentary evidence prepared during the same. Thereafter prosecution evidence was closed.
18. Statement of accused was recorded u/s 313 CrPC wherein entire incriminating evidence was read over and explained to him to which he pleaded innocence and stated that he has S.C.No. 35/10 Page 6 of 14 pages 7 been falsely implicated. He preferred not to lead any defence evidence.
19. I have heard Ld APP for State, Ld counsel Sh S.A Khan for the accused and given due consideration to the facts and circumstances of the case, evidence and the record.
20. It is argued by Ld APP that case of the prosecution stands sufficiently proved by way of consistent testimony of prosecution witnesses as well as documentary evidence. The prosecutrix was minor on the date she was taken away by the accused and she has categorically stated about the commission of rape upon her. The medical evidence has also supported the statement of the prosecutrix. The accused has failed to prove his defence that prosecutrix had accompanied and married him with consent. The conviction of accused be recorded forthwith.
21. It has been argued by Ld defence counsel that accused and prosecutrix were in love with each other and she voluntarily accompanied the accused to his village and voluntarily married him. It is a case of run away marriage and therefore no offence is made out. The prosecutrix never raised any complaint about the conduct of the accused either during the time she was being taken to Muradabad or thereafter and therefore clear inference has to be drawn that prosecutrix Megha with full consent married the accused.
22. I have given due consideration to the rival contentions in the background of facts , circumstances and evidence of the present case. Prosecutrix Megha Tyagi (PW7), her father S.C.No. 35/10 Page 7 of 14 pages 8 Mukesh Tyagi (PW2) and her brother Rohit Tyagi (PW3) are the material witnesses to ascertain the guilt of the accused. The present case was registered on the basis of complaint EXPW2/A lodged by PW2 wherein he specifically named accused Talib @ Dev being responsible for taking away her minor daughter. It is also mentioned in the said complaint that accused used to induce prosecutrix by moving around her and accused also used to roam around their house. Also during examination before the court father of the prosecutrix has given clear statement that accused induced her daughter and took her away from Delhi. Only on 6.9.08 when he received a call from unknown person that he came to know about the whereabouts of her daughter. PW2 categorically stated that he alongwith police went to old Delhi railway station and accused and prosecutrix were apprehended. It is also stated by PW3 (brother of prosecutrix) in clear terms that accused used to induce his sister for marriage and that he even scolded accused not to move around his house. PW2 has been cross examined but nothing favourable could be elicited. PW2 categorically denied that accused and prosecutrix had gone to Amroha for performing their marriage as it could not be performed in Delhi. He also denied that he had knowledge about the affair of Talib and Megha for last 45 years. The brother of the prosecutrix PW3 has not been cross examined on any aspect despite opportunity afforded.
23. Most importantly the statement of prosecutrix Megha is clear and categorical on the aspect that she was taken away by S.C.No. 35/10 Page 8 of 14 pages 9 the accused without her consent and was raped by him several times. She specifically denied the suggestions that she was having any kind of affair with accused or that she voluntarily accompanied the accused to Muradabad and was living as wife after marrying him. It is further clear from the conduct of the prosecutrix when she called her father from old Delhi railway station that she was not willing to remain with the accused. The accused went away to buy tickets for Mumbai and meanwhile prosecutrix called her father and thereafter both of them were apprehended from old Delhi railway station. The testimony of the prosecutrix as well as of PW2 and PW3 are consistent and cogent and there is nothing to affect their credibility and veracity. After the apprehension on 6.9.08, the statement of prosecutrix was recorded by the IO u/s 161 CrPC. She also supported in the said statement that she was taken away by the accused to his village Folda patti where he married her by putting sindoor on her head and raped her several times without her consent. She also wrote a statement in her handwriting EXPW12/G wherein she repeated all these allegations and held the accused responsible for kidnapping her without her consent, marrying her and then raping her. On 8.9.08, her statement was recorded u/s 164 CrPC wherein also she maintained that accused kidnapped her and raped her without her consent. In view of all these consistent statements of the prosecutrix, it is evident that prosecutrix Megha never consented to accompany the accused or to marry him or to have sexual S.C.No. 35/10 Page 9 of 14 pages 10 intercourse with him. The medical report of prosecutrix reveals that her hymen was torn and otherwise also their living as husband and wife stands admitted on behalf of accused.
According to definition of kidnapping as provided u/s 361 IPC: "Whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
24. In view of above mentioned legal provision, the pleas taken by accused does not hold good defence. The prosecutrix was not capable of giving any consent as she was 16 years of age at the time of incident. Admittedly, the consent of lawful guardian of prosecutrix Megha was not taken by the accused and since he induced the prosecutrix and thereby without her consent took her to Folda Patti and there compelled her to marry, it is clear that accused has committed the offence punishable u/s 366 IPC. The arguments advanced by Ld defence counsel that prosecutrix never raised any complaint about the conduct of the accused and therefore her consent is implied, has no force in view of the statements of the prosecutrix. It is clearly stated by prosecutrix in her statement EXPW12/G that she could not contact her family as she had no money or any other source. She also stated in her testimony that accused was having knife with him and he took her away after showing her knife. She also maintained in her statement recorded u/s 164 Cr PC that accused met her in S.C.No. 35/10 Page 10 of 14 pages 11 the market, covered her mouth and took her to Malkaganj and thereafter to Muradabad and raped her several times. She categorically stated therein that severe punishment be handed over to the accused. In view of these statements of the prosecutrix, it is clear that she was under threat and for this reason she was not able to raise her voice. It cannot be inferred that prosecutrix consented to marry the accused. Otherwise also so far as offence u/s 366 IPC is concerned, the consent of prosecutrix if minor ( under 18 years) is not material.
25. Coming to the offence of rape as punishable u/s 376 IPC, there is sufficient evidence in the form of testimony of prosecutrix and her statement u/s 164 CrPC EXPW7/A that she was repeatedly raped by the accused against her wishes. she categorically denied the suggestions that she was in love with the accused or that she voluntarily married the accused and was staying with him as wife. Coming to the defence of the accused that it was run away marriage or that he was having love affair with the prosecutrix for last about 45 years has no merit or substance. It is also difficult to believe that since the age of 11/12 years prosecutrix was in love with accused Talib and voluntarily went away with him. There is no evidence or material brought on record by the accused to establish the factum of love affair or voluntary marriage between both of them. No witness has been examined who could depose that prosecutrix was having affair with accused and voluntarily married him.
S.C.No. 35/10 Page 11 of 14 pages 12 The investigation and circumstances related to the same have also been properly proved on record with the statements of police officials. It is evident that accused was arrested from old Delhi railway station and was thereafter medically examined. The defence of the accused that he was arrested from Muradabad has not been substantiated by way of any evidence or material. I find no justification to disbelieve the prosecutrix and her father and brother who have no reason to depose falsely against the accused. There is sufficient evidence to conclude that accused is responsible for kidnapping prosecutrix Megha for the purpose of marriage and illicit intercourse and thereafter raped her without her consent. The prosecution has been able to bring home the guilt of accused and therefore I hold the accused Talib @ Dev guilty for the offences punishable u/s 366 and 376 IPC.
ANNOUNCED IN THE
OPEN COURT ON 2.2.2011 (ANJU BAJAJ CHANDNA)
ADDL. SESSIONS JUDGE
DELHI
S.C.No. 35/10 Page 12 of 14 pages
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IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI.
S.C No. 35/10 FIR No. 216/08PS Sarai Rohilla US 366/376 IPC S/V Talib @ Dev 5.2.2011 ORDER ON SENTENCE PRE: Sh Ramesh Kumar, APP for State.
Convict Talib @ Dev from J.C. Counsel Sh S.A Khan for convict.
I have heard both the sides on the point of sentence and perused the record. The conviction of accused has been recorded u/s 366 & 376 IPC.
It is submitted on behalf of convict that he is about 24 years of age and is not a previous convict nor involved in any other criminal case. He is the eldest child of his parents and is responsible to support his parents and to look after his younger brother and unmarried sister. His father is stated to be heart patient. It is also stated that convict belongs to poor family. Lenient view is prayed for.
On the other hand, Ld APP has argued that severest punishment be awarded to the convict so that strong message is conveyed to the society against such offences.
On consideration of facts and circumstances of the case S.C.No. 35/10 Page 13 of 14 pages 14 and contentions of both the sides, I am of the opinion that accused does not deserve any leniency and there are no adequate or special reasons to impose lesser sentence upon the accused. The accused was about 21 years of age and victim was about 16 years of age at the time of commission of offence. The fact that sanctity and future of the victim has been ruined due to the act of the accused cannot be ignored. I find no justification to show leniency in favour of the accused. I therefore sentence the convict to rigorous imprisonment for four years and fine of Rs 7000/ u/s 366 IPC, in default of payment of fine, simple imprisonment for four months and rigorous imprisonment for seven years and fine of Rs 10,000/ u/s 376 IPC, in default of payment of fine, simple imprisonment for six months. Both the sentences shall run concurrently. Benefit u/s 428 CrPC be given to the convict.
Copy of the judgment and order on sentence be given to the convict. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 5.2.2011.
(ANJU BAJAJ CHANDNA)
ADDL. SESSIONS JUDGE
DELHI
S.C.No. 35/10 Page 14 of 14 pages